PART-TIME CONTRACTOR SERVICES AGREEMENT
Exhibit
10.9
THIS
AGREEMENT (“Agreement”)
is entered into and made effective this 20th
day
of October, 2006
BETWEEN:
HI
HO SILVER RESOURCES INC.,
a body
corporate having an office situate at 0000 Xxxxxxxxxx Xx., Xxxx 00, Xxxxxxxxxxx,
Xxx. X0X 0X0
(hereinafter
referred to as the "Company")
OF
THE FIRST PART
AND:
SMALL
CAP INVEST LTD.,
a
company incorporated in England having its office at Xxxxxxxxxxxx 00, 00000
Xxxxxxxxx, Xxxxxxx
(hereinafter
referred to as the "Contractor")
OF
THE SECOND PART.
WHEREAS:
A. the
Company desires to retain a party who will be principally responsible for
providing public relations services to the Company in Europe;
B. the
Contractor is prepared to provide European public relations services to the
Company;
C. the
Company wishes to retain the Contractor to perform European public relations
services;
NOW
THEREFORE THIS AGREEMENT WITNESSES that
in
consideration of the respective covenants and agreements of the parties
contained herein, the sum of one dollar paid by each party hereto to the other
and other good and valuable consideration (the receipt and sufficiency of which
is hereby acknowledged by each of the parties hereto) it is agreed as
follows:
1. PUBLIC
RELATIONS
1.1 The
Company hereby engages the Contractor to perform European public
relations services for the
Company and
the
Contractor hereby accepts such engagement, all pursuant
to the
terms and conditions of this Agreement.
1.2 Subject
to the provisions of this Agreement and the ultimate direction and control
of
the Company, as expressed through its board of directors or any officer that
the
Company's board of directors
may delegate such responsibility to, the Contractor
shall
perform
and is hereby authorized
to
perform the duties
as set
forth in Schedule "A" and such other public relations services as may be
mutually agreed between the parties from time to time.
1.3 In
performing its duties hereunder, the Contractor
shall
at
all times exercise the standard of care, skill and diligence normally provided
in the performance of services similar to that contemplated by this Agreement.
If the Company, whether at the request of the Contractor
or
otherwise, engages the services of a specialist, the Contractor
shall
be
entitled to rely on the skill and knowledge of such specialist, and shall not
be
liable to the Company for any damages or loss arising out of or arising from
the
services of such specialist. The Contractor
shall
be
entitled to rely on the accuracy of any data furnished by the Company unless
to
do so would be unreasonable.
1.4 It
is
understood that the Contractor is not registered as either a registered
representative, nor broker-dealer, nor adviser under any Securities
Act
and that
the services to be performed by the Contractor shall not include the offering
or
sale on behalf of the Company, any affiliate of the Company, or any other
person, any securities, including without limitation stock in the Company.
The
Contractor shall not be required to perform any services enumerated hereunder
if, under the circumstances at the time such services would be rendered
(including
without limitation any offerings or sales of securities by the Company or any
affiliate of the
Company
at or about the same time), performance of such services might reasonably be
considered to constitute participation, direct or indirect, in any offering
or
distribution of securities.
1.5 The
Contractor shall not engage in any of the following activities:
(a) disclose
any previously undisclosed material information concerning the Company
such
that
they could be considered a "tippor" under the xxxxxxx xxxxxxx provisions
of
applicable securities laws;
(b) attend
at
any residence or telephone any residence for the purpose of trading in any
security of the Company, contrary to applicable securities laws;
(c) commit
any act, advertisement, solicitation, conduct or negotiation for the purpose
of
trading in any security of the Company, contrary to applicable securities
laws;
(d) commit
any action to promote or hype the trading in any security of the Company
contrary to applicable securities laws;
(e) participate
or assist in a distribution of any security of the Company which is not exempted
from the prospectus requirement contained in any applicable Securities Act;
or
(f) engage
in
or profess to engage in the business of advising others with respect to the
investment and/or purchase or sale of any security of the Company.
1.6 The
Contractor's duties are restricted to the distribution of factual information
on
behalf of the Company and the Contractor shall not make any recommendation
with
respect to the purchase or sale of any security of the Company. The Contractor
will refer all questions regarding the possible purchase or sale of any security
of the Company to a registered representative, broker-dealer or
adviser.
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2. COMPENSATION
TO THE CONTRACTOR
2.1 In
consideration for the services to be provided by the Contractor, the Company
shall pay the Contractor a service fee consisting of an aggregate monthly cash
payment in advance in the amount of Euro Five Thousand (€
5,000.00) per
month
plus expenses and shall grant the Contractor or its assign(s) an option to
acquire a total of 250,000
common
shares in the capital of the Company (including an option to Xxxxxxx xxx Xxxx
to
acquire 50,000 common shares) at an exercise price of $0.70
per
common share. The
parties acknowledge and agree that Euro One Thousand (€ 1,000.00) of the
service fee shall be paid to Xxxxxxx xxx Xxxx per month.
2.2 The
Company agrees to forthwith, upon presentation of an invoice therefore,
reimburse the Contractor for all
travel and other expenses actually and properly incurred by the Contractor
in
connection with carrying out its duties arising hereunder and directly related
to activities carried out on the Company's behalf including hotel,
airfare, train, mileage and other travel expenses incurred in order to attend
at
meetings with or on behalf of the Company, provided that such expenses shall
have
been
pre-approved by the Company.
2.3 For
all
special services, not within the scope of the Agreement, the Company shall
pay
to the Contractor such fee(s) as, and when, the parties shall determine in
advance of performance of said special services, provided the Company has agreed
to said special services in advance.
3. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE COMPANY
3.1 The
Company represents and warrants as follows, effective as of the date hereof
and
at all
times
throughout the duration of this Agreement:
(a) the
Company is duly incorporated, organized and validly exists as a corporation
in
good standing under the laws of the jurisdiction where it is incorporated or
continued and has the full corporate power and capacity to conduct its business
and to enter into and perform all of its obligations under this
Agreement;
(b) this
Agreement has been duly authorized by all necessary corporate action and
constitutes
a valid and binding obligation of the Company, enforceable against it
in
accordance with its terms;
(c) all
information provided and to be provided to the Contractor by the Company is
and
will
be
complete and accurate in all material respects and does not and will not
omit
to state
any material fact necessary so that the statements made, in light of the
circumstances under which they are made, are not or will not be
misleading;
(d) there
are
no actions, proceedings, suits or investigations pending or threatened
against
or involving the Company or any of its affiliates, including, without
limitation,
actions,
proceedings, suits or investigations by any United States or Canadian, federal,
provincial, state, self-regulatory organization, or other securities authority,
relating in any way to the offering, sale, issuance or trading of any securities
of the Company or any affiliate.
-3-
4. RESPONSIBILITY
OF THE CONTRACTOR
4.1 The
Contractor's sole responsibility hereunder shall be to use its best efforts
to
perform the duties set forth herein, to the extent consistent with applicable
law. The Contractor shall not be responsible
for providing legal or investment advice to any person or for assuring or
monitoring the qualification
of the stock of the Company, or any other securities, as complying with any
provisions,
restrictions, or exemptions of federal, provincial, or state securities laws.
The Contractor shall not be responsible for verifying the accuracy of any
information with respect to the Company and may disclaim
responsibility for the accuracy of such information in any communication in
the
course of its
duties
hereunder, but the Contractor shall have the right to refuse to deliver or
disseminate any information provided by the Company that: (a) fails clearly
to
indicate that the Company or its management is the source of such information:
or (b) the Contractor reasonably believes may be inaccurate, incomplete or
misleading. The Contractor acknowledges that every record disseminated as part
of the public awareness campaign, must clearly and conspicuously disclose that
the record is issued by or on behalf of the Company.
4.2 The
Contractor is aware and acknowledges that all of its activities shall be
conducted in compliance with applicable securities legislation and the rules
and
by-laws of the applicable securities exchanges under whose jurisdictions its
activities fall.
5. RESPONSIBILITY
OF THE COMPANY
5.1 The
Company
| (a) |
shall
supply the Contractor, on a regular and timely basis, with all accurate,
approved data and information about the Company, its management, its
products, and its operations;
|
| (b) |
shall
ensure
that all such information is true, accurate and complete in all material
respects;
|
| (c) |
shall
be responsible for advising the Contractor of any facts which would
affect
the accuracy of any prior data or information previously supplied to
the
Contractor so that the Contractor may take corrective action;
and
|
| (d) |
cooperate
with the Contractor to enable the Contractor to perform its duties
and
obligations under this Agreement.
|
5.2 The
Company shall
promptly supply the Contractor with full and complete copies of all
| (a) |
news
releases and filings made with all applicable securities regulatory
authorities;
|
| (b) |
shareholder
reports and communications whether or not prepared with the assistance
of
the Contractor;
|
| (c) |
data
and information supplied to any analyst, broker-dealer, market maker
or
other member of the financial community; and
|
| (d) |
investor
relations brochures, sales materials, and other documents as may be
required or needed by the Contractor in connection with the services
rendered to the Company pursuant to the
Agreement.
|
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5.3 The
Company shall
be
responsible for all costs of providing the services, including but not limited
to out-of-pocket expenses for postage, delivery services, (e.g. Federal Express,
United Parcel Services, Postal services), telephone charges, compensation to
third party vendors, copywriters, xxxxx xxxxxxx, art and graphic personnel,
subcontractors, printing, etc.
6. TERM
6.1 This
Agreement shall be for a period of twelve months commencing on July 1, 2006
and
shall continue in
force
from month to month thereafter until terminated by either the Company or the
Contractor as set out in Section 6.3.
6.2 It
is an
event of default ("Event of Default") if a party (the "Defaulting Party") (the
other party
being
the "Non-Defaulting Party"):
(a) commits
a
breach of any representation, warranty or covenant on the part of the
Defaulting
Party where such breach continues for 10 days after the
Non-Defaulting
Party
has demanded that such breach be cured;
(b) becomes
bankrupt, commits an act of bankruptcy, files for any form of bankruptcy or
creditor
protection, is adjudicated bankrupt, makes a proposal to its creditors, has
a receiver
or a receiver-manager of its assets appointed, or otherwise seeks any
form
of
bankruptcy or creditor protection;
(c) fails
to
take reasonable action to prevent or defend any action or proceeding in relation
to the seizure, execution or attachment of any of such Defaulting Party's
assets.
6.3 Prior
to
the expiration of its term, this Agreement may be terminated:
(a) by
the
Non-Defaulting Party at any time upon the occurrence of an Event of
Default
upon
written notice to the Defaulting Party setting forth:
(i) the
Event
of Default; and
(ii) the
effective date of termination; or
(b) after
the
initial six months by either party upon 30 day's written notice to the other
setting forth the effective date of such termination.
6.4 If
this
Agreement is terminated prior to completion of its term, the parties shall
settle out all
payments
due as at the date of termination as soon as reasonably possible.
7. SEVERABILITY
7.1 The
Company and the Contractor hereby expressly agree that it is not the intention
of either party to violate any public policy, statutory or common law, and
that
if any sentence, paragraph, clause, or combination of the same is in violation
of the law of any jurisdiction where applicable, such
sentence, paragraph, clause or combination of the same alone shall be void
in
the jurisdiction where
it
is unlawful, and the remainder of such paragraph and this Agreement shall remain
binding upon
the
parties hereto. The parties further acknowledge that it is their intention
that
the provisions
of this
Agreement be binding only to the extent that they may be lawful under existing
applicable laws, and in the event that any provision of this Agreement is
determined by a court of law to be overly broad or unenforceable, the valid
provisions shall remain in full force and effect.
-5-
8. NON-EXCLUSIVITY
8.1 The
Company acknowledges that the covenants set forth in this Agreement will not
in
any way preclude the Contractor from engaging in a lawful profession, trade
or
business of any kind or from becoming gainfully employed or retained, and
furthermore, that during the term of this Agreement,
the Company agrees that the Contractor is not bound exclusively to the Company,
and
may
provide public relations or investor relations services to other public or
private companies of the Contractor's choice.
9. INDEMNITY
9.1 The
Company shall and hereby agrees to indemnify and save harmless the Contractor
from and against any and all claims, actions, suits, demands, loss, damages,
liabilities and expenses
of any
nature or kind whatsoever brought against the Contractor as a result of its
performance in good faith of the duties and obligations required of it
hereunder.
10. MISCELLANEOUS
10.1 This
Agreement shall be construed and enforced in accordance with the laws of the
Federal Republic of Germany. The parties hereto irrevocably consent to the
exclusive jurisdiction of the courts of the Federal Republic of Germany and
hereby agree that any disputes or claims arising hereunder may be brought
before, and adjudicated by, the courts of the Federal Republic of Germany,
all
objections to such venue in such court being irrevocably waived
hereby.
10.2 Any
reference herein to an "affiliate" of a person or company shall include any
majority owned subsidiary of such person or company, or any other person or
company who controls, is controlled by, or is under common control with, in
each
case directly or indirectly, such person or company.
10.3 Time
shall be of the essence of this Agreement.
10.4 The
captions appearing in this Agreement have been inserted for reference and as
a
matter of convenience and in no way define, limit or enlarge the scope or
meaning of this Agreement.
10.5 This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original and all of which together shall constitute one and
the
same instrument. Delivery of an executed copy of this Agreement by electronic
facsimile transmission or other means of electronic communication capable of
producing a printed copy will be deemed to be execution and delivery of this
Agreement as of the date first set forth above.
10.6 If
an
action is instituted in any court relative to the collection or refund of any
fee due to the Contractor and, provided that the Contractor shall prevail in
any
such action, the Company promises to pay all the Contractor's costs, expenses,
and fees in said action or appeal, including without limitation, reasonable
legal fees.
-6-
10.7 Notice
may be given to either party by sending it through the post in prepaid mail
or
delivered to the party for whom it is intended, at the principal address of
such
party provided herein or at such other address as may be given in writing by
such party to the other, and any notice if posted shall be deemed to have been
given at the expiration of seven business days after posting and if delivered,
on delivery.
10.8 The
parties hereto covenant and agree to make, execute and deliver any and all
further assurances or other documents necessary to give full effect to the
meaning and intent of this Agreement.
10.9 This
Agreement shall enure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns.
10.10 This
Agreement represents the entire agreement of the parties hereto with respect
to
the subject
matter hereof and may not be modified, nor may any provisions hereof by waived,
except in writing,
duly executed by each party potentially adversely affected by any modification,
and by each
party
waiving any rights hereunder.
10.11 The
Company shall, if required, forthwith file this Agreement for acceptance by
the
applicable stock exchange(s), and the respective securities commission, and
such
other regulatory authorities as may have jurisdiction over the transactions
herein contemplated and this Agreement is subject to such acceptance for
filing.
10.12 The
Company and the Consultant acknowledge that the preparers of this document,
Genesis Law Corporation and Xxxxxxx xxx Xxxx, have prepared this document solely
to facilitate the transactions set out herein. As such the Company and the
Consultant agree to hold Genesis Law Corporation and Xxxxxxx xxx Xxxx harmless
from any disputes or other issues arising between the Company and Consultant
as
a result of the transactions set out herein. Further, no legal advice has been
rendered by Genesis Law Corporation or Xxxxxxx xxx Xxxx to either the Company
or
to the Consultant and they acknowledge that they have been advised to seek
their
own independent legal advice and they have and do acknowledge seeking
independent legal, accounting and investor advice from their own accountants,
lawyers and other professional service providers. The Company and the Consultant
consent to Xxxxxxx xxx Xxxx as being the scrivener of this document and
acknowledge that neither Genesis Law Corporation nor Xxxxxxx xxx Xxxx represent
either the Company or the Consultant in this transaction.
IN
WITNESS WHEREOF,
the
parties hereto, intending to be legally bound, have executed this Agreement
as
of the day and year first set forth above.
|
HI
HO SILVER RESOURCES INC.
|
SMALL
CAP INVEST LTD.
|
||
|
/s/
Signed
|
/s/
Signed
|
||
|
Authorized
Signatory
|
Authorized
Signatory
|
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SCHEDULE
"A"
The
public relations services to be provided by the Contractor to the Company
pursuant to Section 1.2 of the Agreement include:
(a) to
identify bankers, registered representatives (stockbrokers) and portfolio
managers (collectively
"advisers") who may be interested in considering for the portfolio of
their
customers, the common stock of the Company, introducing the Company to such
advisers and coordinating communications and relationships with such advisers
on
behalf of the Company, all in order to develop and expand a network of advisers
who are well informed regarding the Company;
(b) to
assist
the Company in developing its corporate profile, materials, news releases,
brochures, mailouts, etc.;
(c) contacting
financial and industry specific media and arranging interviews for the Company’s
management;
(d) to
make
necessary presentations to advisers and shareholders in order to inform them
with respect to the affairs of the Company;
(e) to
maintain timely personal contact with such registered advisers and shareholders
to assure their awareness of the Company's performance, including the forwarding
of
its
corporate profile, materials published in newspapers, magazines and
journals,
press
releases, brochures, mailouts, etc. provided by the Company;
(f) to
issue,
as required upon written approval of the Company, corrective, amending,
supplemental or explanatory press releases, shareholder communications and
reports or data; and
(g) to
assist
the Company in formulating and achieving its objectives including participating
in planning meetings, and implementation of such plans and
objectives.
all
of
which duties are designed to raise the public awareness of the Company in the
European Union.
-8-
